IN THE COURT OF APPEAL OF ZAMBIA Appeal No 51/2023

HOLDEN AT NDOLA
(Criminal Jurisdiction)

BETWEEN:

WILSON LUNGU APPELLANT

AND

THE PEOPLE RESPONDENT

CORAM: Mchenga DJP, Muzenga, Chembe JJA

On 22rd August, 2023 and 31st August, 2023

For the Appellant: Mr. G. K. Mwamba, Messrs Gill & Seph Advocates

For the Respondent: Mr. G. Zimba, Deputy Chief State Advocate, National
Prosecution Authority

JUDGMENT

MUZENGA JA delivered the Judgment of the Court.

Cases referred to:

1. The People v Mwiya Lubasi (1981) 310
2. Godfrey Miyanda v. The High Court (1984) ZR 62

Legislation referred to:

1. Anti-Corruption Act No.3 of 2012 of the Laws of Zambia

2. The Criminal Procedural Code Chapter 87 of the Laws of Zambia
3. The Constitution of Zambia {Amendment) .Act No. 2 of 2016
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1.0. INTRODUCTION

1.1. The appellant was charged with one count of willful failure to follow

applicable law or procedure guidelines contrary to Section 34(2) (b) of

the Anti-Corruption Act. The particulars of offence alleged that the

appellant and 5 others, on dates unknown but between the 1st day of July,

2019 and 3pt of December, 2019, at Lusaka in the Lusaka province of the

Republic of Zambia, being members of the Evaluation Committee jointly and

whilst acting with other persons unknown, willfully failed to comply with

applicable law and procedure relating to procurement evaluation of Tender

Number MOH/SP/032/19 for supply and delivery of 22,500 Health Center

Kits, a matter or transaction which concerns Ministry of Health, a Public

Body.

2.0. BACKGROUND

2.1. The appellant was subject of a complaint under Cause No. 2SPD/027 /21,

which was filed on 19th January, 2021 and withdrawn on the same day.

Following the withdrawal of the complaint, the Learned Magistrate acquitted

the appellant. The State did not appeal against the said acquittal.

2.2. The appellant was subsequently arrested and jointly charged with others for

the offences for which he was acquitted. He then raised a plea in bar of

autre fois acquit There was no dispute that an acquittal was entered. The
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issue the State raised was that the acquittal was irregular considering the

manner in which it was entered.

2.3. The trial magistrate found that she could not review the appellant's acquittal

as she was of equal jurisdiction with the magistrate who acquitted the

appellant. She thus referred the issues to the High Court.

2.4. The matter referred to the High Court was under Cause No. SSPD/015/2022.

3.0. FINDINGS AND DECISION OF THE COURT BELOW

3.1. The Economic and Financial Crimes Divisional Court heard the matter

referred to it by the Subordinate Court under Cause No. SSPD/015/2022 and

also called for the record under 2SPD/027 /2021. The Divisional Court

proceeded to find that it had jurisdiction to review the decision of the court

below to acquit the appellant and found that the Order of Acquittal was a

nullity as no plea was taken and consequently no criminal proceedings had

been instituted.

4.0. GROUNDS OF APPEAL

4.1. Embittered with the decision of the Divisional Court, the appellant filed two

grounds of appeal couched as follows:

(1) The court below erred in law and fact when it held that it had

jurisdiction to review the proceedings under Cause No.

2SPD/027 /2021 notwithstanding the fact that there was an

order of acquittal in those proceedings

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(2) The court below erred in law and fact when it annulled and

declared void an order of acquittal under Cause No

2SPD/027 /2021 without due regard to the jurisdictional limit

contained in section 338(1) (b) of the Criminal Procedural

Code.

5.0. THE APPELLANT'S ARGUMENTS

5.1. The two grounds of appeal were argued simultaneously on the account that

they raise one fundamental question of whether in terms of Section 338(1)

(b) of the Criminal Procedural Code (the CPC), the court below has

jurisdiction to alter or reverse an order of acquittal.

5.2. It was contended that the provisions of Section 338(1) (b) of the CPC is

straight forward and needs no interpretation. According to learned counsel

for the appellant, the High Court is vested with jurisdiction to review or

revise decisions of the Subordinate Court for purposes, inter alia, of

satisfying itself of the correctness, legality or propriety of orders passed by

the subordinate court. However a perusal of Section 338(1) (b) of the

CPC reveals that the revisionary jurisdiction conferred on the High Court is

not unlimited as it does not extend to an order of acquittal passed by a

Subordinate Court.

5.3. It was learned counsel's further contention that Section 338 (1) (b) of the

CPC is clear that the High Court has got jurisdiction to alter or reverse any
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other order except or apart from an order of acquittal. It was argued that in

going ahead to review proceedings where there was an acquittal and

reversing the acquittal order in the face of a clear statutory embargo

contained in Section 338 {1) {b) supra, the lower court clothed itself with

jurisdiction which it did not have. As a result, the court below acted in want

of jurisdiction.

5.4. We were referred to the case of The People v. Mwiya Lubasi1 where

Sakala, J, as he then was, held that:

"It is clear from s. 338 of the Criminal Procedure Code that

the High Court can make a number of orders on revision in
the case of any proceedings before a subordinate court where
there has been a conviction but not where there has been an
acquittal."

5.5. We were also referred to several Kenyan cases in which the courts

interpreted a provision similar to Section 338{1) (b) of our CPC in their

statute book. We are indebted for the same and we have taken them into

consideration.

5.6. We were urged to allow this appeal, reverse the ruling of the High Court and

give effect to Section 338(1) (b) supra.

6.0. THE RESPONDENT'S ARGUMENTS

6.1. On behalf of the respondent, learned counsel contended that the High Court

was called upon not to review the order of acquittal issued by the
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Honourable Magistrate Chiwaula but to determine whether a plea in bar can

be raised and sustained where the accused person never appeared before

an earlier Court to take plea but was acquitted on withdrawal of the

complaint, before the complainant was authorized by the Director of Public

Prosecutions to privately prosecute the matter.

6.2. It was contended that the High Court was alive to its jurisdiction and rightly

determined whether it had jurisdiction to determine the matter before it and

the consequential legality of the alleged acquittal. In support of this

argument, we were referred to Sections 337 and 338(1) (b ) of the CPC

already cited above as well as Article 134 of the Republican

Constitution which stipulates that:

"The High Court has, subject Article 128-

(a) Unlimited and original jurisdiction in civil and
criminal matters;
(b) Appellate and supervisory jurisdiction as prescribed;
and
( c) Jurisdiction to review decisions, as prescribed."

6.3. It was further submitted that the lower Court had rightfully exercised its

supervisory and revisionary jurisdiction in reviewing the proceedings of the

Subordinate Court which resulted in the alleged acquittal of the Appellant

when it determined the correctness and legality of the proceedings. Learned

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counsel contended that this is particularly so because there were several

serious irregularities which the lower Court had to correct as the Honourable

Magistrate Chiwaula under Cause No. 2SPD/027 /2021, acted in breach

of Section 90(4) of the CPC and irregularly acquitted the Appellant and

Others pursuant to Section 201 of the CPC.

6.4. It was argued that the lower Court did not reverse or alter the order of

acquittal but ruled that the order was null and void as it was issued contrary

to the provisions of the law because the Honourable Magistrate Chiwaula

breached the provisions of the Law by acting contrary to the provisions of

Section 90(4) and Section 201 of the CPC.

6.5. In summation, it was the respondent's argument that the lower court was

on firm ground when it ruled that the alleged order of acquittal was null and

void and cannot be relied upon by the Appellant as it is a product of void

actions of the Honourable Magistrate who acted in breach of the Law and in

want of jurisdiction.

7.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED

7.1. At the hearing of the appeal, learned counsel for the appellant, Mr. Mwamba,

placed full reliance on the documents filed. On behalf of the state, Mr. Zimba

informed the court that the state would equally rely on the heads of

argument filed before the court.

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8.0. CONSIDERATION AND DECISION OF THE COURT

8.1. We have carefully examined the record, the arguments by both counsel and

the Ruling of the lower court. We are of the considered view that this appeal

raises a question of jurisdiction of the High Court in its exercise of powers

of review.

8.2. In the case of Godfrey Miyanda v. The High Court2, Ngulube DO, as he

then was, stated inter alia that

"The term "jurisdiction" should first be understood. In one

sense, it is the authority which a court has to decide matters
that are litigated before it; in another sense, it is the
authority which a court has to take cognisance of matters
presented in a formal way for its decision. The limits of
authority of each of the courts in Zambia are stated in the
appropriate legislation. Such limits may relate to the kind and
nature of the actions and matters of which the particular
court has cognisance or to the area over which the
jurisdiction extends or both".

8.3. It is clear from this decision that jurisdictional limits are provided for in

appropriate legislation and such limits may relate to the nature of actions

and matters for which a particular court has cognizance or the area over

which the jurisdiction extends. Jurisdiction is therefore donated and cannot

acquired by the court's own volition.

8.4. This matter was referred to the High Court by the Magistrate who was of

the view that she could not assail the acquittal of the appellant by another

Magistrate, who was of equal jurisdiction. Therefore the only way that the
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High Court could have dealt with those issues was by exercising its powers

of review.

8.5. The issue before us as we see it therefore, is not whether the acquittal of

the appellant was regular or not. The issue is whether the High Court has

jurisdiction to exercise its revisionary powers, where an accused person has

been acquitted.

8.6. The Constitution, no doubt bestows jurisdiction on the High Court to exercise

powers of review, as rightly argued by learned counsel for the respondent.

The use of the words "as prescribe" in Article 134 { c) of the Constitution

entails that parliament through legislation will provide the parameters in

which that power must be exercised. Therefore, the context in which that

power may be exercised is clearly provided, in terms of criminal matters, in

the CPC, specifically in Sections 337 and 338. We shall reproduce the

relevant portions of these Sections for ease of reference.

337. The High Court may call for and examine the
record of any criminal proceedings before any
subordinate court, for the purpose of satisfying itself as
to the correctness, legality or propriety of any finding,
sentence or order recorded or passed; and as to the
regularity of any proceedings of any such subordinate
court.
338 {1) In the case of any proceedings in a subordinate
court, the record of which has been called for, or which
otherwise comes to its knowledge, the High Court may­
{a) in the case of a conviction-
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(i) confirm, vary or reverse the decision of the

subordinate court, or order that the person
convicted be retried by a subordinate court of
competent jurisdiction or by the High Court, or
make such other order in the matter as to it may
seem just, and may by such order exercise any
power which the subordinate court might have
exercised;
(ii) if it thinks a different sentence should have
been passed, quash the sentence passed by the
subordinate court and pass such other sentence
warranted in law, whether more or less severe, in
substitution therefor as it thinks ought to have
been passed;
(iii) if it thinks additional evidence is necessary,
either take such additional evidence itself or
direct that it be taken by the subordinate court;
(iv) direct the subordinate court to impose such
sentence or make such order as may be specified;
(b) In the case of any other order, other than an
order of acquittal, alter or reverse such order.

8. 7. It is clear from Section 337 that it provides the power of the High Court to

call a record from the Subordinate Court and the purpose or reason for doing

so. Section 338 on the other hand provides for what the High Court can

do or not do after calling a record for purposes of reviewing the same.

Subsection 1 (a) of Section 338, clearly empowers the court to exercise

powers of review in respect of a person who has been convicted and

provides what the High Court can do after review. Subsection 1 (b) of

Section 338 empowers the High Court in the exercise of its revisionary
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jurisdiction, where any other order has been made by the Subordinate Court,

except an order of acquittal, to alter or reverse such order.

8.8. It is trite that where the words in a statute are unambiguous or clear, courts

must give effect to the clear meaning of the words. This is referred to as the

literal rule of interpretation, to give words their ordinary and natural

meaning. The role of the court is not enact or amend a statute. Its role is to

give effect to the intention of the legislator, which is reflected in the words

of an enactment.

8.9. We therefore agree with learned counsel for the appellant that Section

338(1) (b) is very clear and needs no rigorous interpretation. The learned

court below preoccupied itself with the propriety of the appellant's acquittal

and ended up bequeathing itself jurisdiction which it lacked. Whether the

acquittal is irregular, improper, uncalled for or null and void is not an issue

in which the High Court exercising powers of review may declare or

pronounce itself on. This can only be done when the High Court is exercising

appellate jurisdiction. Therefore, the court below fell in grave error when it

exercised jurisdiction that it did not have. Jurisdiction is granted by law and

cannot be acquired. Jurisdiction is everything. Had the learned court below

properly directed itself, it would no doubt have reached the verdict as ours.

8.10. If the state were dissatisfied with the appellant's acquittal, they should have

appealed. We find merit in both grounds of appeal. We allow the appeal.

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9.0. CONCLUSION

9.1. Having allowed the appeal, we accordingly set aside the Ruling of the Court

below. The appellant's acquittal remains undisturbed and as things stand,

he cannot be prosecuted for the offence for which he was acquitted.

C. F. R. MCH N
DEPUTY JUDGE PRESIDENT

••.............�••.••.•..•.....•
K. M NGA Y.CHEMBE
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE